Ontario Court of Appeal decision could result in Alberta legislation
Lack of clarity on referral is unsatisfactory
The Lawyers' Daily
Thursday, November 21, 2019 @ 1:59 PM
Reproduced with permission
Barry W. Bussey*
While it may initially seem strange that a decision of one appellate court would result in proposed legislation in a different province altogether, such is the state of politics and law in this country.
Over the last number of years, the judiciary has been reluctant to protect the physician, being the Charter rights-holder, who has a conscientious objection — religious or otherwise — to taking another human life (whether pre-born or with a terminal illness). It now falls on legislators to act in support of the Charter rights of doctors.
Alberta MLA Dan Williams' private bill to ensure conscience protection of physicians in Alberta is a sensible — indeed, commendable — move in response to the unfortunate decision of the Ontario Court of Appeal (ONCA) in which the court declared that conscientious physicians "have no common law, proprietary or constitutional right to practice medicine" (Christian
Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario [2019] O.J. No. 2515).
Imagine the outcry if this statement were applied to a racial minority. Yet this argument appears to be fair game against those medical practitioners who do not agree with the court's definition of "public interest." That public interest, according to the court, requires physicians to be involved in a host of potentially controversial medical procedures including abortion, contraception, infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, gender reassignment surgery and medical assistance in dying (MAiD).
Religious conscience has become the politically correct punching bag of late for the courts, as is evidenced by the Hutterian Brethren and the Trinity Western University law school cases at the Supreme Court of Canada (Alberta v. Hutterian Brethren of Wilson Colony [2009] 2 S.C.R. 567; Law Society of British Columbia
v. Trinity Western University [2018] 2 S.C.R. 293).
The ONCA decision is but the latest in an ongoing attack against religious conscience. It is, therefore, not surprising that legislators are taking a stand in response to their constituents' legitimate concerns that the courts have overstepped their jurisdiction in implementing a "progressive ideology."
It is evidence that the courts' definition of "the public interest" is not fully accepted by the "public." And just exactly who gets to determine the public interest is a valid question in this age of judicial activism.
Maybe, just maybe, we are starting to see some legislative pushback against the growing power of the judiciary. However, we can expect those in power to respond with pushback of their own. Already, we see the "Court Party" — that is, the legal and media commentators — suggesting that Williams' proposal will result in the loss of health care services, particularly for women and LGBTQ patients.
That is a
misrepresentation of the bill, which does not seek to limit or hinder access for patients, who will still be able receive the treatments they want or require. It only means that physicians will be able to decline taking part in a medical procedure that violates their conscience.
This is not a new concept in our law. From the very inception of our country, we have tolerated differences of belief and conscience. Workers who need time off to attend religious services on a holy day; conscripts who refuse to bear arms; drivers who refuse to have pictures taken; Sikhs who refuse to wear helmets — all have been accommodated, on the basis of conscience, to one extent or another. Far from damaging or destroying our country, this diversity has shaped our very identity, helping to define our nation as an inclusive mosaic of cultures, viewpoints and beliefs.
In the case of this legislation, the worst that could happen is that a potential patient may be informed by their family physician that she
does not perform such services and that the patient is to see someone else. As a result of that interaction, a patient may discover that the physician has a different perspective on the moral and ethical dimensions of medicine.
The patient may well be offended by that knowledge, and such offence needs to be acknowledged and respected. At the same time, the risk of causing offense should not force the physician to give up medicine. Surely it is not in our public interest to have fewer physicians due to conflicts between the demands of conscience and the demands of their practice.
Nor is it in the public interest, I suggest, to shield our citizens from exposure to divergent beliefs: as the Supreme Court itself has observed in Chamberlain, experiencing "cognitive dissonance … is simply a part of living in a diverse society. It is also part of growing up." (Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710).
There is much talk of "dog whistles," meaning political language
that resonates differently with certain subgroups. Dog whistles go both ways. The loudest whistle in this debate so far has been the claim, coming from Osgoode Hall, that conscientious physicians have no "right" to practise medicine because of their conscience. It is time we all work together to find a reconciliation of views by ensuring that the patients are served and that conscientious physicians are respected.
Williams' proposal is a great first step.
Barry W. Bussey, PhD, is director, legal affairs at Canadian Council of Christian Charities. The views expressed are personal and do not necessarily reflect those of his employer.